Four Things Employers Should Do in 2013

One theme of this column is that liability avoidance usually does not need to be expensive. Employers of all sizes can save themselves money and headaches in the long run by proactive steps to minimize employee-related liability.

Bill Nolan

To that end, I offer four things on which every employer should spend some time and a little bit of money in 2013 to protect the company from the cost and distraction of legal problems:

1. Figure out what your employees are doing on social media that might affect the company, and deal with it.

Needless to say, your employees are doing all kinds of things on social media. Some of it is lighthearted and personal, and should stay that way. However, even social media conducted off work time and/or on personal accounts can affect the well-being of the company. Confidential information can be compromised, employees can be unlawfully harassed, and your reputation can be damaged.

At the same time, employers’ ability to control this activity is not unlimited. The National Labor Relations Board has taken a very hard line against union and nonunion employers alike when social media policies may unlawfully restrict employees’ ability to communicate among each other about the terms and conditions of their employment.

Spend a few minutes with your company’s employment lawyer to figure out what concerns you may have with employee social media use, how to lawfully address potential issues, and for a preventive maintenance check on your current practices.

2. Manage company information that is on employee-owned devices.

Almost all companies have employees conducting some business on personally owned electronic devices. BYOD –bring your own device– has become a common buzzword. Two bad things can happen if you allow BYOD and do not establish some measure of control of and access to these devices.

One, information can be lost. Even if you have the information elsewhere, it may fall into the wrong hands. Two, you may not have that information when you need it in litigation. The consequences of this can be devastating.

You would not leave a confidential file folder sitting on the sidewalk, yet this is what many employers, in effect, do by not taking modest steps to have access to employee devices. Have this conversation in 2013 and takes steps to address it.

3. Spend time training your managers.
You have my best wishes for a career relatively free of litigation and other legal proceedings against your business. Unfortunately, for most of us legal proceedings are at least an occasional cost of doing business. When that happens, you need your lawyer to be able to tell your story to a third party decision maker who does not know you or your adversary, and does not have time to get to know you.

One thing you can do to help us tell your story most effectively is to train your managers on things they should and should not be doing: What is appropriate and lawful workplace behavior? What is permissible use of company e-mail and social media accounts? How do you protect confidential information?

These are just a few examples of fruitful training issues. If you have a legal problem, the story your lawyer tells can start with the foundation that your business wanted to tell managers how to handle the situation at issue.

“Training” is a word like “investigation” for employers; it sounds expensive, but it does not need to be. Certainly you should get some legal guidance about your training programs, but it need not involve offshore seminars. Training that will help your lawyer tell your story in a lawsuit or other legal dispute can be as simple as a working lunch dedicated to one of these important topics. The fact of training may often be more important than the delivery.

4. Figure out who your employees really are.

Perhaps no mistake is as common, particularly among smaller businesses, than assuming that you can avoid the various costs and laws that go along with employees by just calling them something else. Sometimes, even subconsciously, employers believe that using a “contractor” or a “consultant” avoids any obligation to include those workers in employee benefit plans or to pay them overtime, and deprives those individuals of the right to bring a discrimination suit of join a union. And it might.

But if it does, it is not because of the label given to that individual; rather it is because they meet the legal tests for who is an employee and who is not under various applicable laws. If you have anybody you do not consider to be an employee working as part of your business on a regular basis, ask your employment counsel to give you an initial opinion as to any possible risk, then you can follow up from there if he or she flags any potential problem areas.

These are four areas where many entrepreneurial companies (and other companies as well) often tend not to have adopted best practices. The good news is that each area can be at least partially addressed by relatively simple steps. Taking the time to do so in 2013 will increase the likelihood that employee-related issues will not distract your focus from your mission.

Bill Nolan has practiced law in Columbus since 1989. In 2009, he opened the Columbus office of Barnes & Thornburg LLP, a large full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business. Barnes & Thornburg lawyers will be providing this column on a monthly basis.

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